Whittier v. Electric Refrigeration Corp.

Wiest, J. This case, except in two particulars, is ruled by Harvey v. Electric Refrigeration Corporation, ante, 235. Plaintiff herein sold his stock holdings before he discovered right to have return of his money. Before suit he made tender of equivalent stock to the *248 amount sold him, together with dividends received and interest thereon. The tender was refused, and defendant contends that it was no tender, because not the same stock sold by it to plaintiff, and plaintiff, having sold his stock holdings, cannot now recover what he paid defendant for the same. The statute, section 20, Act No. 220, Public Acts 1923, adopts, and this court, in Joslin v. Noret, 224 Mich. 240, applied, the common-law rule that, upon rescission, there must be return made so as to place defendant in statu quo. Defendant has plaintiff’s money. Plaintiff tendered back the equivalent of all he had received, and it was no defense to claim that the shares tendered were not the identical shares sold him. American Alkali Co. v. Salom, 131 Fed. 46 (certiorari denied, 196 U. S. 641) Schultz v. O’Rourke, 18 Mont. 418 (45 Pac. 634). Plaintiff’s right to relief accrued to and remained in him subject only to restoration of the status quo. He tendered restoration, and is entitled to have return of what he paid defendant, less dividends received, with interest thereon. There was no valid defense, and the judgment is affirmed, with costs to plaintiff. North, C. J., and Fead, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred.